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Income Tax Appellate Tribunal, “SMC” BENCH, MUMBAI
Before: SHRI SHAMIM YAHYA
O R D E R Per Shamim Yahya, A. M.: These are appeals by the assessee against the respective orders of the ld. Commissioner of Income Tax (Appeals) for assessment years 2009-10, 2010-11 and 2011-12. Since the issues are common, these appeals were heard together and they are being disposed off by this common order.
The first common issue raised is that the ld. Commissioner of Income Tax (Appeals) erred in confirming the initiation of reassessment proceedings u/s. 147. The erred in confirming the addition of 15% of the alleged bogus purchase. Since facts are identical, the appeal is being adjudicated by reference to the facts and figures from assessment year 2009-10.
Brief facts of the case are as under:
The assessee is an individual and is proprietor of M/s Fit Tech Industries engaged in the business of trading of industrial hardware. These grounds relate to disallowance of Rs 46,04,989/- as bogus purchases and consequent addition of the same amount. The Assessing Officer has received information from the Sales Tax department that the assessee has shown purchases from 10 bogus concerns. The names of these concerns are mentioned in para 5 of the assessment order. The total purchases from these 10 parties comes to Rs.3,06,99,925/-. During the course of assessment, the Assessing Officer issued notices u/s.133(6) to the said parties. All the notices were returned unserved by the postal authorities. It is the contention of the Assessing Officer that the assessee failed to establish the genuineness of purchases.
Since the Assessing Officer did not doubt the genuineness of sales, he came to the conclusion that the assessee must have made purchases from grey market and therefore the purchase rate mentioned in the alleged bills cannot be accepted. After considering the totality of facts, the Assessing Officer stated that the assessee has arranged bills worth Rs.3,06,99,925/- to suppress her true profit. The Assessing
3 to 4585/Mum/2017 Sangeeta Ghanshyam Patel vs. ACIT Officer thereafter estimated her additional profit by taking 15% of the bogus purchase as fair profit. The Assessing Officer accordingly made an addition of Rs.46,04,989 /-.
Upon the assessee’s appeal, the ld. Commissioner of Income Tax (Appeals) confirmed the action of the Assessing Officer by holding as under:
During the course of assessment proceedings, the A.O, found that the assessee had not been able to establish the genuineness of purchases in dispute. The main arguments of the AO on the basis of which he had formed his opinion were-
1. 1. The assessee was not able to submit any lorry receipts or any details regarding transportation of goods.
2. The suppliers from whom the disputed purchases have been made are included in the list of hawala operators prepared by the Sales Tax Department.
3. The suppliers from whom the disputed purchases have been made, did not comply to notice u/s 133(6).
4. The suppliers from whom the disputed purchases have been made, were not produced before the AO. 5.4 It is seen from record that the A.O. has not mechanically disallowed the entire disputed purchases amounting to Rs. 3,06,99,925/-, rather he has disallowed 15% of the amount of purchase in dispute. It is an undisputed fact that the notices u/s 133(6) issued to the suppliers mentioned above came back undelivered. When the basic details like purchases remain unverifiable, it is open for the A.O. to reject the book results of the assessee. Thus, it is held that the A.O. was right in rejecting the book results of the assessee. Furthermore, as stated above, the A.O. has himself estimated the additional profit which should have arisen because of the alleged bogus purchase rather than disallowing the entire disputed purchases. The A.O. also fairly conceded in para 8 of his order that the appellant had incurred expenditure on such purchases, but not from the parties mentioned in the sate bills, Further the rate of profit taken by the AO on the disputed purchases seems reasonable considering nature and scale of business of the appellant. Since the A.O, has himself given substantial relief to the assessee by a speaking- order I do not see any reason to interfere in the order of the A.O. The grounds of appeal
Nos, 2, 3 & 4 are dismissed and accordingly addition of Rs. 46,04,989/- is confirmed.
5. Against the above order, the assessee is in appeal before the ITAT. reopening of the assessee, on a careful consideration, I note that in this case information was received by the Assessing Officer from DGIT Investigation (Mumbai) there are some parties who are engaged in the hawala transactions and are also involved in issuing bogus purchase bills for sale of material without delivery of goods, which information was based on information received by Revenue from Maharashtra Sales Tax Authority. Information was received that the assessee was beneficiary of hawala accommodation entries from entry providers by way of bogus purchase. The accommodation entry provider has deposed and admitted before the Maharashtra Sales Tax Authority vide statement/ affidavit that they were engaged in providing bogus accommodation entries wherein bogus sale bills were issued without delivery of goods, in consideration for commission. These, accommodation entry providers, on receipt of cheques from parties against bogus bills for sale of material, later on withdrew cash from their bank accounts, which was returned to beneficiaries of bogus bills after deduction of their agreed commission. The Assessee was stated to be one of the beneficiaries of these bogus entries of sale of material from hawala entry operators in favour of the assessee wherein the assessee made alleged bogus purchases through these bogus bills issued by hawala entry providers in favour of the assessee.
These dealers were surveyed by the Sales Tax Investigation Department whereby the directors of these dealers have admitted in a deposition vide statements/affidavit made before the Sales Tax Department that they were involved in. issuing bogus purchase assessee is stated to be beneficiary of bogus purchase bills.
From the above, I find that tangible and cogent incriminating material were received by the AO which clearly showed that the assessee was beneficiary of bogus purchase entries from bogus entry providers which formed the reason to believe by the AO that income has escaped assessment. The information so received by the AO has live link with reason to believe that income has escaped assessment. On these incriminating tangible material information, assessment was reopened. At this stage there has to be prima facie belief based on some tangible and material information about escapement of income and the same is not required to be proved to the guilt. In this regard, I refer to the decision of the Hon'ble Apex Court in the case of CIT(A) Vs. Rajesh Jhaveri Stock Brokers P. Ltd, 291 ITR 500:-
"Section 147 authorises and permits the Assessing Officer to assess or reassess income chargeable to lax if he has reason to believe that income for any assessment year has escaped assessment. The word "reason" in the phrase "reason to believe" would mean cause or justification. If the AO has cause or justification to know or suppose (hat income had escaped assessment, it can be said to have reason to believe that an income had escaped assessment. The expression cannot be read to mean that the AO should have finally ascertained the fact by legal statute with solicitude for the public exchequer with an inbuilt idea of fairness to taxpayers. As observed by the Supreme Court in Central Provinces Managnese Ore Co, ltd. v. ITO(1991) 191 ITR 662, for initiation of action under section 147(a) (as the provision stood at the relevant time) fulfillment of the two requisite conditions in that regard is essential. At that stage, the final outcome of the proceeding is not relevant. In other words, at the initiation stage, what is required is "reason to believe", but not the established fact of escapement of income. At the stage of issue of notice, the only question is whether there was relevant material on which a reasonable person could have 6 to 4585/Mum/2017 Sangeeta Ghanshyam Patel vs. ACIT formed a requisite belief Whether the materials would conclusively prove the escapement is not the concern at that stage. This is so because the formation of belief by the AO is within the realm of subjective satisfaction ITO v. Selected Dalurband Coal Co, (P.) Ltd. (1996) 217 ITR 597 (Supreme Court): Raymond Woollen Mills Ltd. v. ITO (1999) 236 ITR 34 (Supreme Court).”
The above discussion and precedent from Apex Court fully justify the validity of reopening in this case. Further I find that the Ld. CIT(A) has carefully examined the issue and has properly appreciated the issue. Hence, I do not find any infirmity in the same. Accordingly, I uphold the order of the Ld. CIT(A) on the issue of reopening. Since, the issue has been decided on the basis of the Hon’ble Apex Court decision, the other case laws referred by assessee are not supporting the assessee’s case.
As regards merits of addition, I find that credible and cogent information was received in this case by the assessing officer that certain accommodation entry provider/bogus suppliers were being used by certain parties to obtained bogus bills, assessee was found to have taken accommodation entry/bogus purchase bills during the concerned assessment year from different parties. Based upon this information assessment was reopened. The credibility of information relating to reopening has been confirmed by the learned CIT(A) and by ITAT as above. Furthermore it is noted that in such factual scenario Assessing Officer has made the necessary enquiry. The issue of notice to all the parties have returned unserved. Assessee has not been able to provide any confirmation from any of the party. Assessee has also not been able to produce any of the parties. The necessary evidence for transportation of goods have obtained bogus purchase bills. Mere preparation of documents for purchases cannot controvert overwhelming evidence that the provider of these bills are bogus and non- existent and there is no cogent evidence of transportation of goods. The sales tax Department in its enquiry have found the parties to be providing bogus accommodation entries. The assessing officer also issued notices to these parties at the addresses provided by the assessee. All these notices have returned unserved.
Assessee has not been able to produce any of the parties. The assessing officer has noted that there is no cogent evidence of the provision of goods. Neither the assessee has been able to produce any confirmation from these parties. In such circumstances, there is no doubt that these parties are non-existent.
Hence purchase bills from these non-existent/bogus parties cannot be taken as cogent evidence of purchases, in light of the overwhelming evidence the revenue authorities cannot put upon blinkers and accept these purchases as genuine. This proposition is duly supported by Hon’ble Apex Court decision in the case of Sumati Dayal 214 ITR 801 and Durga Prasad More 82 ITR 540. In the present case the assessee wants that the unassailable fact that the suppliers are non-existent and thus bogus should be ignored and only the documents being produced should be considered. This proposition is totally unsustainable in light of above apex court decisions.
Hon’ble Gujarat High Court decision in the case of Apex Appeal No. 240 of 2003 in the case of N K Industries vs Dy CIT, order dated 20.06.2016, wherein hundred percent of the bogus purchases was held to be added in the hands of the assessee and tribunals restriction of the addition to 25% of the bogus purchases was set aside. It was expounded that when purchase bills have been found to be bogus 100% disallowance was required. The special leave petition against this order along with others has been dismissed by the Hon’ble Apex Court vide order dated 16.1.2017.
I note that the Hon'ble jurisdictional High Court in the case of Nikunj Eximp Enterprises (in writ petition no 2860, order dt. 18.6.2014) has expounded that when sales are not doubted, 100% disallowances for bogus purchase is not permissible.
However, facts of that case were a little different inasmuch as sales were to government department.
I further find that in similar circumstances Hon’ble Gujarat High Court in the case of CIT vs Simit P. Sheth [2013] 356 ITR 451 (Guj.) has held that 12.5% disallowance of the bogus purchase in such situation meets the end of justice.
Following the above catena of orders have been passed by the ITAT, Mumbai.
Accordingly, I modify the order of the ld. Commissioner of Income Tax (Appeals) and direct that the disallowance in this case be restricted to 12.5% of the bogus purchase. The ld. Counsel of the assessee fairly agreed to the above proposition.
9 to 4585/Mum/2017 Sangeeta Ghanshyam Patel vs. ACIT 14. In the result, these appeals by the assessee stand partly allowed. Order pronounced in the open court on 01.01.2018 Sd/- (Shamim Yahya) लेखा सद�य / Accountant Member मुंबई Mumbai; �दनांक Dated : 01.01.2018 व.�न.स./Roshani, Sr. PS आदेश क� ��त�ल�प अ�े�षत/Copy of the Order forwarded to : अपीलाथ� / The Appellant 1. ��यथ� / The Respondent 2. आयकर आयु�त(अपील) / The CIT(A) 3. आयकर आयु�त / CIT - concerned 4. �वभागीय ��त�न�ध, आयकर अपील�य अ�धकरण, मुंबई / DR, ITAT, Mumbai 5. गाड� फाईल / Guard File 6. आदेशानुसार/ BY ORDER,